Citation Nr: 0013059
Decision Date: 05/17/00 Archive Date: 05/24/00
DOCKET NO. 93-08 697 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a heart disability.
2. Entitlement to service connection for peripheral vascular
disease.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
D. A. Saadat
INTRODUCTION
The veteran had active military service from November 1940 to
November 1941 and from September 1942 to October 1945.
The issues on appeal arise from a April 1992 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in San Juan, Puerto Rico. In February 1995, the Board
of Veterans' Appeals (Board) remanded the veteran's claims
for additional development.
REMAND
In February 1995, the Board Remanded this case to the RO, in
pertinent part, to confirm the veteran's dates of active duty
prior to September 1942. The RO was to contact the National
Personnel Records Center (NPRC) and submit additional
information received from the veteran and request all daily
sick reports or morning reports for the period in 1943 and
1944. SGO records were also to be requested. Finally, a
search for records at the following facilities was to be
undertaken: Hospital Rodriquez, Ballaja, San Juan (October
1940 - February 1941) and Gorgas, Fort Clayton, Panama, from
November 1943 to March 1944.
In a September 1995 memorandum, the NPRC confirmed that the
veteran did have active duty from November 1940 to November
1941, provided information concerning pertinent morning
reports, and indicated that no SGO records were located.
However, it does not appear that a search for records at the
above referenced facilities was undertaken. Moreover, in a
written statement dated in February 1995, the veteran also
indicated that he was hospitalized around Christmas time in
1940 at "Ft. Brook Hospital . . . in San Juan." The RO
needs to request that the NPRC attempt to contact these
facilities and obtain any records they have pertinent to the
veteran.
Moreover, the Board notes that the RO did not issue a
supplemental statement of the case following the February
1995 remand, although this was also requested in the remand.
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter "the Court") has held that a remand
by the Board confers on the appellant, as a matter of law,
the right to compliance with the remand orders, and imposes
upon the Secretary of VA a concomitant duty to ensure
compliance with the terms of the remand. Furthermore, the
Court held that where "the remand orders of the
Board . . . are not complied with, the Board itself errs in
failing to insure compliance." Stegall v. West, 11 Vet.
App. 268 (1998).
In view of the foregoing, and to afford the veteran due
process, this claim is REMANDED to the RO for the following
development:
1. The RO should again contact the NPRC
and specifically request a search for
records pertinent to the veteran from
"Fort Brook Hospital" in San Juan
(Christmas time 1940), Hospital
Rodriquez, Ballaja, San Juan (October
1940-February 1941) and Gorgas, Fort
Clayton, Panama from November 1943 to
March 1944. If these records are
unavailable for any reason, then the NPRC
should confirm this in writing and the
written confirmation should be associated
with the claims file.
2. Upon completion of the development
requested by the Board and any other
development deemed appropriate by the RO,
the RO should again consider all the
veteran's claims and all the evidence
that has been associated with the claims
file since the November 1992 supplemental
statement of the case. If any action
taken remains adverse to the veteran, he
and his representative should be
furnished a supplemental statement of the
case. The veteran and any representative
should be given an opportunity to
respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant need take no action until otherwise
notified, but he may furnish additional evidence and argument
while the case is in remand status. Kutscherousky v. West,
12 Vet. App. 369 (1999). The purpose of this remand is to
ensure due process. No inference should be drawn regarding
the final disposition of the veteran's claims as a result of
this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).